Opinion
1 Div. 133.
March 20, 1941. Rehearing Denied April 17, 1941.
Appeal from Circuit Court, Clarke County; Joe M. Pelham, Jr., Judge.
Granade Granade, of Chatom, for appellant.
The bill in this case to foreclose a first mortgage, to expunge an abortive satisfaction of record and to enjoin prosecution of an ejectment suit, contains equity. Carpenter v. First Nat. Bank, 236 Ala. 213, 181 So. 239; Watson v. Hamilton, 211 Ala. 688, 101 So. 609; Watson v. Hamilton, 210 Ala. 577, 98 So. 784; Boone v. Byrd, 201 Ala. 562, 78 So. 958; Kelly v. Martin, 107 Ala. 79, 18 So. 132; Gulf Red Cedar Co. v. Crenshaw, 138 Ala. 134, 35 So. 50; Walla Walla v. Walla Walla Water Co., 172 U.S. 1, 12, 19 S.Ct. 77, 43 L.Ed. 341. The bill in equity setting up one or more original grounds of equity jurisdiction should be maintained in order that full and adequate justice may be done, even to passing upon some matters cognizable at law. Johnston v. Smith's Adm'r, 70 Ala. 108; Dargan v. Waring, 11 Ala. 988, 46 Am.Dec. 234; Billups v. Gilbert, 180 Ala. 437, 61 So. 901; Gulf Comp. Co. v. Jones Cotton Co., 157 Ala. 32, 47 So. 251; Ellis v. Vandergrift, 173 Ala. 142, 55 So. 781; Cullman Prop. Co. v. H. H. Hitt Lbr. Co., 201 Ala. 150, 77 So. 574; Southern R. Co. v. Hayes, 183 Ala. 465, 62 So. 874. Appellee Brady is a proper party to the suit. Shockley v. Christopher, 180 Ala. 140, 60 So. 317; Bank of Luverne v. Turk, 222 Ala. 549, 133 So. 52; Jones v. Jefferson County, 206 Ala. 13, 89 So. 174.
Adams Gillmore, of Grove Hill, for appellees.
Defendant in ejectment cannot enjoin trial at law where his defenses are cognizable in a law court. Wilson v. Miller, 143 Ala. 264, 39 So. 178, 111 Am.St.Rep. 42, 5 Ann.Cas. 724; Lehman, Durr Co. v. Shook, 69 Ala. 486; Hall v. Slaughter, 155 Ala. 625, 47 So. 103; Dailey v. Koepple, 164 Ala. 317, 51 So. 348.
Though complainant may in equity be entitled to other relief against plaintiff in ejectment suit, he still is not entitled to enjoin an ejectment suit if his defense to it is cognizable in a court of law. A very wide range of defenses can be presented and adjudicated on the law side of the court in an ejectment suit. Womack v. Powers, 50 Ala. 5; McCormick v. McCormick, 221 Ala. 606, 130 So. 226.
This appeal is from an interlocutory decree of the Circuit Court, sitting in equity, granting the motion of the defendant, W. C. Brady, to dissolve the temporary injunction issued upon filing the bill, and sustaining said defendant's demurrer to the bill.
The sole purpose of the bill, so far as Brady is concerned, is to enjoin the prosecution of an ejectment suit by Brady for the recovery of the possession of the lands described in the bill, and to quiet the complainant's title as against Brady.
The bill alleges that the complainant is the owner of the lands, has the legal title thereto, and is in possession thereof through his tenants.
The bill is without equity in so far as the defendant Brady is concerned. Wilson v. Miller, 143 Ala. 264, 39 So. 178, Ill Am.St.Rep. 42, 5 Ann.Cas. 724; Lehman, Durr Co. v. Shook, 69 Ala. 486, 492; Hall v. Slaughter, 155 Ala. 625, 47 So. 103; Dailey v. Koepple, 164 Ala. 317, 51 So. 348; McCormick et al. v. McCormick et al., 221 Ala. 606, 130 So. 226; Stewart et al. v. Carnell et al., 235 Ala. 636, 180 So. 307.
Brady is not a party to the mortgage which the bill seeks to foreclose, hence Carpenter et al. v. First Nat. Bank of Birmingham, 236 Ala. 213, 181 So. 239, is not an apt authority to sustain the equity of the bill as against Brady.
The decree of the circuit court is free from error.
Affirmed.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.